Juggling Rights and Utility: A Legal and Philosophical Framework for Analyzing Same-Sex Marriage in the Wake of United States v. Windsor

Juggling Rights and Utility: A Legal and Philosophical Framework for Analyzing Same-Sex Marriage in the Wake of United States v. Windsor

In June of 2013, Justice Anthony M. Kennedy authored the majority opinion in United States v. Windsor, striking down the Defense of Marriage Act asan unconstitutional “deprivation of the equal liberty of persons.” Instead of applying the Supreme Court’s traditional tiers-of-scrutiny framework, Justice Kennedy’s due process and equal protection analysis weighed multiple factors: the significance of the liberty interest at stake, the extent to which similarly situated individuals were being treated differently under the law, the presence of animus or moral disapproval of a politically unpopular class in the law’s purpose and effect, and the legitimacy and strength of the government’s policy justifications. Justice Kennedy’s approach in Windsor incorporates important due process and equal protection considerations that the tiers-of-scrutiny framework would have failed to capture. His more holistic analysis, however, lacks the clarity and precision necessary to guide future cases effectively, particularly with regard to the constitutionality of state bans on same-sex marriage.

If Justice Kennedy’s nuanced and integrative approach is to endure, additional work is needed to provide a methodology that is detailed, coherent, and replicable. This Comment presents a conceptual framework that courts could use to engage in the type of weighing called for inWindsor while avoiding the decision’s vulnerabilities. Through the use of an approach in philosophy and normative economics called “deontologically constrained cost- benefit analysis,” the proposed framework balances the various utilitarian and deontological considerations in the same-sex marriage debate with greater clarity. Further, as applied to state bans on same-sex marriage, the proposed framework demonstrates why such bans ought to be declared unconstitutional: the purported costs of same-sex marriage, even when viewed in a light most favorable to opponents of same-sex marriage, are insufficient to override the relative strength of the due process and equal protection interests of gay and lesbian individuals.



More in this Issue

Reconciling Personal Information in the United States and European Union

Paul M. Schwartz & Daniel Solove U.S. and EU privacy law diverge greatly. At the foundational level, they differ in their underlying philosophy: In the United States, privacy law focuses on redressing consumer harm and balancing privacy with efficient commercial transactions. In the European Union, privacy is hailed as a fundamental right that can trump […]

Finding a Path Through the Political Thicket: In Defense of Partisan Gerrymandering’s Justiciability

In 1986, the U.S. Supreme Court declared partisan gerrymandering unconstitutional; in 2004, the Court declared it nonjusticiable. In between and since, scholars have debated over the precise harms of partisan gerrymandering, the wisdom of judicial intervention, and the feasibility of separating unconstitutional from legitimate redistricting schemes. This Comment adds to that literature by drawing for […]

Fetal Protection Laws: Moral Panic and the New Constitutional Battlefront

Increasingly, state statutes are the primary means through which legal norms affecting low-income pregnant women’s autonomy, privacy, and liberty are introduced and shaped. Arrests, forced bed rests, compelled cesarean sections, and civil incarcerations of pregnant women in Alabama, Florida, Indiana, Iowa, Mississippi, New Mexico, South Carolina, Texas, Utah, and Wisconsin merely scratch the surface of […]

Angela Harris and the Racial Politics of Masculinity: Trayvon Martin, George Zimmerman, and the Dilemmas of Desiring Whiteness

This Festschrift Essay uses the Trayvon Martincontroversy as an opportunity to reflect on the insights Angela Harris’s scholarship provides about the dialogic relationshipbetween race, masculinity, and the criminal law. After surveying Harris’s contributions to critical race theory, masculinity studies, and feminist legal theory, this Essay distills some of her insights into a “masculinity studies toolkit” […]

Angela Harris: The Person, the Teacher, the Scholar

  Angela Harris has written eloquently about the creative tensions that define her as a person, a teacher, and a scholar. She has explored the challenges of maintaining a private identity when called upon to share her life experience with a public audience, whether in the classroom, at a conference, or in an essay. She […]

I Am/I Am Not: On Angela Harris’s Race and Essentialism in Feminist Legal Theory

In 1990, Angela Harris wrote an article that interrogated the limitations of feminist legal theory. Nearly a quarter of a centurylater, the insights and challenges Harris offered in Race and Essentialism in Feminist Legal Theory continue to reverberate. The influence of her ideas can be seen in the fractured and passionate conversations about gender, race, […]